provisions of this title." In addition, Section 207 authorizes the Register of Copyrights to make rules and regulations to govern registration of claims to copyright and Section 209 establishes the content of the certificates of registration which are to be issued to persons "entitled" under the Act. In cases where the Register of Copyrights concluded that the requirements of the Copyright Act have not been met the decision is reviewable in a federal court through a mandamus proceeding.19 Under the provisions of the 1909 Copyright Act, the scope of the Register's discretionary authority essentially falls into two different areas. First, it must be ascertained whether a valid claim to copyright has been created, which includes an examination concerning copyrightability of the material deposited and a determination of compliance with the applicable formalities. Second, if a valid claim exists it must then be ascertained whether the proper materials have been deposited. While the Copyright Office does not search the prior art in order to determine copyrightability, as does the Patent Office in ascertaining patentability, in certain cases questions will arise over whether the requirements of the Act have been met. In cases where it is clear from the material deposited that the provisions in regard to securing a claim to copyright have not been satisfied, a refusal to register the claim will be made. If doubts are raised, however, over the underlying facts supporting a claim to copyright, attempts will be made to resolve the questions through inquiries to the remitter and reference to any pertinent material held within the Copyright Office. Such inquiries are particularly important in registering renewal claims since the original copyright registration bears directly on entitlement to claim the renewal right. Despite the explicit language of the 1909 Act making the issuance of a certificate of registration contingent on meeting the requirements of the Act, occasionally legal theories have been advanced which would deny the Register of Copyrights the authority to refuse registration. These arguments have been so consistently rejected by the courts, however, that today arguments of so sweeping a nature must be deemed frivolous. The earliest decision concerning the right to refuse registration involved the Copyright Act of 1891 when the Librarian of Congress had the duties now performed by the Register of Copyrights. In United States, ex rel. Everson v. John Russell Young, Librarian of Congress," a mandamus action was brought against the Librarian for his refusal to record a claim to copyright in a book that contained no written material. The court sustained the Librarian's position, saying: "I think it is very clear that this proposed publication which, as already stated, is only a book containing blank forms and does not contain a single English sentence is not a composition of any sort-does not come within the purview of the copyright law, and that if a mandamus should issue requiring the Librarian of Congress to record it under the copyright law, that act would be of no advantage whatever to the applicant for this writ. Any court would adjudge that it was not protected by the copyright law at all." "1 The first mandamus action to be brought against the Register under the 1909 Act was Bouvé v. Twentieth Century Fox Film Corp.," involving the question of whether bound collections of page proofs of contributions to periodicals could be registered as a book. On this precise issue the Court held against the Register, finding that it was an abuse of discretion to refuse registration in the book classification. On the general issue of the discretionary powers of the Register, however, the Court of Appeals conceded that it seemed obvious "that the (Copyright) Act establishes a wide range of selection within which discretion must be exercised by the Register in determining what he has no power to accept." 24 1923 Rendering a happier result for the Register was Brown Instrument Co. v. Warner. In this case the Register refused to enter a claim to copyright in a graphic chart used as a part of a machine on the ground that the nature of the work was controlled solely by mechanical or scientific calculations. In the mandamus action which ensued, the circuit court upheld the lower court in denying the petition stating that the plaintiff failed "to establish that its charts are 19 Vacheron Watches, Inc. v. Benrus Watch Co., 260 F. 2d 637 (2nd Cir. 1958). 20 26 Wash. L. Rep. 546 (Sup. Ct. D.C. 1898). 21 Id. at 547. 22 122 F. 2d 51 (D.C. Cir. 1941). 23 Id. at 53. 24 161 F. 2d 910 (D.C. Cir. 1947), cert. den. 332 U.S. 801 (1947). 'writings of an author' or 'drawings' within the meaning of the Constitution and the copyright statute." 25 26 The next mandamus action against the Register of Copyrights was the landmark case of Bailie and Fiddler v. Fisher. In this case the plaintiffs sought to compel registration, as a "work of art," of a claim to copyright in a picturerecord device. The work consisted of cardboard in the shape of a five-pointed star with flaps on the lower two points, which, when folded back, provided a stand; in a circle on the face of the star was a picture of a Hollywood personality, and impressed over the picture was a phonograph recording of his voice. No argument was made as to the registrability of the claim on the basis of the photograph since the plaintiffs sought protection solely for the device itself. The Register's motion for summary judgment, on the ground that the device was not a "work of art” within the meaning of the Copyright Act, was sustained by both the district and circuit courts. 27 The last mandamus action brought against the Register involved both the manufacturing clause and the ad interim provisions. In Hoffenberg v. Kaminstein, an English-language edition of the book "Candy" was first published in France in 1958, probably due to the fact that the obscenity standards applicable at that time would not permit American publication. In 1964 those standards had liberalized sufficiently to permit publication of an American edition. In 1965 registrtaion was sought for both the French edition, under the ad interim provisions, and the American edition, without any statement of the new matter in the latter edition. Registration of both claims was denied by the Register. The French edition was not registrable under the ad interim provision because registration had not been made within the statutory six month period following first publication. Registration of the American edition was denied on the ground of a Copyright Office regulation which required books and periodicals first published abroad in the English language to comply with the ad interim provisions before domestic registration could be considered, unless the claim was limited to new matter.28 29 Subsequently, an action was brought against the Register to compel registration of the American edition. In both the district court and the circuit court the Register prevailed. In a per curiam opinion of the District of Columbia Court of Appeals it was pointed out that a regulation "is presumptively valid and ordinarily should be upheld unless it is inconsistent with the statute." The opinion went on to say that the regulation was consistent with the pertinent sections of the Copyright Act and that it accurately reflected the intent of Congress. B. The functioning of the Copyright Office and the separation of powers concept While the Copyright Office is given significant administrative duties under the 1909 Act, it is by no means the only government agency having responsibilities in the copyright area. Enforcement of the criminal provisions of the Act are assigned to the Justice Department as is constitutionally required by the law enforcement clause of Article II. In addition, the Justice Department represents the Copyright Office in court proceedings involving the Register which include compliance actions under Section 14 and mandamus petitions. Another Executive Agency having considerable administrative responsibilities under the Copyright Act is the U.S. Customs Service of the Treasury Department. Section 106 of the Act prohibits the importation of materials bearing a faise notice of copyright or works which are pirated editions and Section 107 establishes importation prohibitions against works not complying with the manufacturing requirements. Enforcement of these provisions is the responsibility of the Customs Service. From this sketch of governmental responsibilities under the Copyright Act it is apparent that there is a mixture of authority which is similar in fashion to the interrelationship between the three branches of government under the Constitution. Under such a copyright system no one agency can determine government policy in all areas of copyright matters thereby establishing a checks and balances system tending to mitigate against arbitrary action. In enforcing its assigned duties under the 1909 Act the Copyright Office must 25 Id. at 911. 26 258 F. 2d 425 (D.C. Cir. 1958). 27 396 F. 2d 684 (D.C. Cir. 1968). 28 37 C.F.R. § 202.4 (b) (1967). 29 Hoffenberg, supra note 27 at 685. 30 17 U.S.C. § 104 (1974). occasionally work closely with the Executive Departments of Justice and Treas ury. Being administratively located within the Library of Congress, however, it is clear that the Copyright Office can not be thought of as being part of the executive branch which, to some, might raise the question of whether such a placement is constitutionally permissible. In order to analyze this important issue two related questions will be examined. First, the narrow question will be discussed of whether an agency exercising the powers of the Register of Copyrights must be placed in the Executive Department. Second, if the answer to the first question is no, a broader inquiry will be made whether there are any constitutional principles which would prohibit Congress from placing the Copyright Office within the Library of Congress. 1. Must an agency exercising the powers of the Register of Copyrights be placed within the Executive Department? In order to answer this question it is clear that the Myers-Humphrey-Wiener line of cases establish the applicable principles. In administering its responsibilities it is clear that the Copyright Office performs a quasi-judicial function. In determining registrability of claims to copyright the Register is to apply the standards established by statute" and a certificate of registration serves as prima facie evidence of the facts stated therein. Moreover, decisions of the Register are directly reviewable by the federal courts through mandamus petitions. 32 In exercising his discretion it is clear that the Register is to exercise independent judgment, ultimately relying on the law itself to determine decisions in individual cases. In situations where the law is ambiguous, it would clearly be proper for either Members of Congress or governmental officials from the Executive Branch to offer opinions as to the proper practice. In situations where the law is clear, however, it would certainly be improper for any official to instruct the Register of Copyright to perform in a way contrary to statute. Having established that the Copyright Office is an independent agency exercising quasi-judicial functions it is clear that the first question is governed by the Wiener case. Since the Register of Copyright exercises no executive functions established by Article II of the Constitution, the Copyright Office does not have to be placed within the Executive Department. 2. Are there any constitutional principles which would prohibit the Congress from placing the Copyright Office in the Library of Congress? It is clear from the Humphrey-Wiener decisions that only Executive functions precisely enumerated in Article II of the Constitution are required to be located in the Executive branch. In this way the application of the separation of powers concept as it relates to Executive powers is limited to those powers specifically set out in the Constitution. Clearly, if the separation of powers doctrine has been limited in a similar fashion over all aspects of constitutional jurisprudence, then there can be no objections to placing the Copyright Office within the Library of Congress since the functioning of such an agency has not been assigned to any of the three branches of government. One of the clearest Supreme Court decisions in setting out the theoretical basis of the separation of powers concept was Williams v. United States, which discussed extensively the power of Congress to establish judicial power outside the scope of Article III of the Constitution. The facts of this case are relatively simple. The plaintiff, a judge of the Court of Claims of the United States, had grown comfortably accustomed to receiving his yearly salary of $12,500. When the Comptroller General reduced his compensation to $10,000 per annum, the judge objected on the ground that Section 1 of Article III forbad such action. The Comptroller defended the reduction on the ground that the Court of Claims was a "legislative court" and hence outside the judicial power as established by Article III. Citing a long line of cases establishing that territorial courts were properly considered "legislative courts" and therefore outside the provisions of Article III, the Supreme Court concluded that a similar characterization must be made of the functioning of the Court of Claims. Once having determined that the judicial power of the Court of Claims was outside the scope of Article III, it 31 Bouvé. supra note 22. 32 17 U.S.C. 209 (1974). 33 289 U.S. 553 (1932). naturally followed that the provision of that Article forbidding a reduction in compensation was inapplicable." In reaching its decision on the objections raised by the plaintiff, Mr. Justice Sutherland dealt in a precise fashion with the concept of separation of powers. While acknowledging the significance of the doctrine, the Judge clearly limited its application to those powers "definitely assigned by the Constitution." In establishing this standard Mr. Justice Sutherland used the following language: "The view under discussion-that Congress having consented that the United States may be sued, the judicial power defined in Art. III at once attaches to the court authorized to hear and determine the suits-must, then, be rejected, for the further reason, or, perhaps, what comes to the same reason differently stated, that it cannot be reconciled with the limitation fundamentally implicit in the constitutional separation of the powers, namely, that a power definitely assigned by the Constitution to one department can neither be surrendered nor delegated by that department, nor vested by statute in another department or agency. And since Congress, whenever it thinks proper, undoubtedly may, without infringing the Constitution, confer upon an executive officer or administrative board, or an existing or specially constituted court, or retain for itself, the power to hear and determine controversies respecting claims against the United States, it follows indubitably that such power in whatever guise or by whatever agency exercised, is no part of the judicial power vested in the constitutional courts by the third article. That is to say, power which may be devolved, at the will of Congress, upon any of the three departments plainly is not within the doctrine of the separation and independent exercise of governmental powers contemplated by the tripartite distribution of such powers." Applying the standards advanced by Mr. Justice Sutherland, it is clear that the quasi-judicial powers of the Copyright Office regarding administration of the registration system have not been "definitely assigned to any department under the Constitution." Therefore, the doctrine of separation of powers is not applicable and the quasi-judicial power of the Copyright Office "may be devolved, at the will of Congress, upon any of the three departments." As a result of the limited application of the separation of powers doctrine, as firmly established by the Supreme Court precedents, coupled with the century old tradition of administering the registration system of copyrights within the Library of Congress," it is clear that constitutional objections to the placement of the Copyright Office are without foundation. III. THE IMPACT OF THE SEPARATION OF POWERS CONCEPT ON COPYRIGHT REVISION Presently before Congress is a Copyright Revision Bill which, if passed, will completely replace the outdated 1909 Act. Like the copyright law presently in effect, the Revision Bill would divide the administration of the copyright law among several governmental authorities. The Executive Department would have essentially the same functions as under the present law, i.e. enforcement of the criminal and importation provisions. The Copyright Office would continue its administrative responsibilities of registering claims to copyright but with several significant modifications. In addition, the Register of Copyrights would have a new responsibility in constituting the Copyright Royalty Tribunal, a new governmental authority designed to review periodically compulsory licensing rates and to resolve disputes involving distribution of royalty fees. From this sketch of the division of governmental authority under the Revision Bill it is clear that the new law would retain the advantages of the 1909 Act 34 This result was subsequently modified in Glidden Co. v. Zdanok, 370 U.S. 530 (1962) which arose after Congress had statutorily declared that the Court of Claims was to be considered an Article III court. None of the seven judges participating in the decision, however, advocated changing the Williams approach regarding the separation of powers concept. Thus, the tradition of limiting the application of the doctrine to those powers specifically articulated in each Article remained unimpaired by the subsequent modification of the status of the Court of Claims. 35 Williams, supra, note 33, p. 580–581 (emphasis added). 38 Congress originally designated the Library of Congress as responsible for the administration of the registration system in the Copyright Act of 1870, 16 Stat. 212. In the 1909 Act which subsequently followed, the Register of Copyrights was substituted for the Librarian of Congress as the official primarily responsible for the administration of the Copyright system. The Copyright Office, however, remained within the structure of the Library of Congress. During this century-long period, no constitutional questions were ever raised over improper location of these administrative functions. 37 S. 22, 94th Congress, 1st sess. (1975); H.R. 2223, 94th Congress, 1st sess. (1975). in mitigating against arbitrary governmental action by mixing power among several agencies. However, due to the modification of the functioning of the Copyright Office, coupled with the creation of the Copyright Royalty Tribunal, a new analysis must be made regarding the impact of the separation of powers concept on these two entities. A. The functioning of the registration system by the Copyright Office 38 Under the Copyright Revision Bill deposit of copies and registration of claims to copyright would be treated as separate though closely related requirements. Deposit of published material for the Library of Congress would remain mandatory with the Register of Copyrights authorized to demand compliance.29 Registration of a claim to copyright, on the other hand, would be permissive although registration would generally remain a prerequisite to bringing an infringement suit in federal court. In cases where the Register has refused registration, however, the copyright claimant would be entitled to institute an infringement action, provided the Register was notified of the complaint.* Since the refusal to register would no longer serve as an absolute bar to federal court, the need for a mandamus action would be eliminated. Despite these significant changes in the deposit and registration provisions, it is clear that essentially the functioning of the Copyright Office in administering the registration system would remain the same as under the present law. In determining the registrability of a claim the Register would ascertain that "the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met. . . 41 of registration is to be accorded prima facie evidence of the facts stated therein as long as registration is made within five years after first publication." Where registration occurs after that time, the probative value of the certificate would be subject to judicial discretion. Finally, the Register of Copyrights would be authorized to establish regulations to assist in the carrying out of his responsibilities.13 From the nature of these provisions it is clear that the maintenance of the registration system would remain a quasi-judicial function. Determination of registrability of a claim is purely a legal question and a refusal to register is reviewable in federal court by instituting an infringement action with notification of the action to the Register. Since Wiener clearly established that agencies performing quasi-judicial functions need not be placed in the Executive Department, no change in the location of the Copyright Office would be required by passage of the Revision Bill with respect to the registration system. B. The Copyright Royalty Tribunal Under the present Revision Bill, a Copyright Royalty Tribunal would be established in the Library of Congress for the dual purpose of adjusting the compulsory licensing royalty rates and settling disputes concerning distribution of royalty fees deposited with the Register of Copyrights (except for the mechanical reproduction of music). In order to establish the membership of the Tribunal, the Register would ask the American Arbitration Association or a similar successor organization to furnish a list of three potential arbitrators. The Register would then communicate the proposed names to all known parties of interest who would be permitted to submit written objections to any or all of the proposed names. If no objections were received, or if the Register determined that the objections were not well founded, he would certify the appointment of the three arbitrators. If the Register decided that the objections were well founded, on the other hand, he would request the American Arbitration Association to propose the necessary number of substitute individuals." In order to discuss the constitutional issues associated with the establishment of the Copyright Royalty Tribunal, it is necessary to analyze the nature of the Tribunal's functioning in its two areas of responsibility-royalty rate adjustment and dispute settlement over distribution of collected royalties. |